When Breaking The Bank Breaks Your Visa

Adriana Loeff, 10.02.08, 04:36 PM EDT

Many laid off banking employees in the U.S. on work visas are now in violation. Here's how they can prolong deportation proceedings.

Over 100,000 Wall Street employees have suddenly found themselves updating their resumes. Some have a special urgency: foreign employees on work visas. Being able to stay depends on their ability to hold onto their jobs.

Act quickly. Losing your job while in the U.S. on a work visa immediately puts you in violation of immigration law. If you come to the attention of the authorities, you may find yourself amid deportation proceedings.

There are some steps foreign workers can take if they lose their jobs. "The advice that we're giving to everyone is that as soon as you know you're going to be losing your job, start looking for a new one," says David Nachman, managing attorney at Nachman & Associates, a business immigration law firm. "See an immigration lawyer so that he can try to figure out what additional options you might have."

Many foreign employees on Wall Street are on H-1Bs, visas for nonimmigrant professionals. They are allowed to move to a new job, but there's no grace period to look for something once laid off. And the sudden fall of several financial institutions over the past months has made finding a job fast nearly impossible. According to Nachman, there are several legal ways to buy time.

Most foreign workers can immediately file for a change in their visa status--either becoming a dependent, visitor or student. Applying for a visitor visa can rather easily get you a few months reprieve to find a new job or prepare to go back home, says Steven Ladik, former president of the American Immigration Lawyers Association. In this tight market, you may need to sacrifice a good paycheck for security. Finding another employer will allow you to file for a new work visa.

When the markets are tight, many professionals decide to hit the books, Americans and internationals alike. The number of students sitting for the required GMAT has increased by almost 12% compared to this time last year, according to the Graduate Management Admissions Council. You may want to consider going back to school and completing an MBA or a PhD. If you do, you can apply for a student visa.

Some of those laid off have spouses with work visas. They can change their status to that of a dependent under their spouse. They aren't usually allowed to get a job without another change of status, but this is another way to get more time.

All the doom and gloom in the U.S. market is making many consider options elsewhere. Some are simply heading back to their native countries. People familiar with the situation at Lehman say several foreign workers have been returning to their home countries since January. The return rate seemed especially high for Brazil, Colombia, Peru and Mexico.

Nachman & Associates received calls from Lehman Brothers (nyse: LEH - news - people ) and AIG (nyse: AIG - news - people ) foreign employees when things started going downhill for the companies. Nachman says some were considering opportunities abroad. New Zealand and Japan were places of particularly high interest.

Canada and the European Union both have more liberal immigration laws for highly skilled professionals than the U.S. These are good places for foreign employees who don't want to return home. Many see Canada as a temporary solution while they look for another job in the U.S.

In the past months, many foreign workers have found themselves jobless while in the process of getting a green card--something that may take years. Some may find that they have to go back to square one. If a company is purchased by another, workers can generally keep their case going. Be aware though--getting laid off at an early stage may force you to start all over, says Nachman.

In any case, acting fast is the key. "The immigration laws are not very merciful," warns Ladik. Staying for over six months on an expired visa will get an individual barred from the U.S. for three years--if they get caught, that is.

The H-1B Season is Upon us ... Other Options for H-1B Lottery Losers!

We are rapidly approaching the April 1st deadline for the filing for new H-1B visas for the 2009 to 2010 Fiscal Year (FY 09-10). H-1B Petitions for FY 09-10 must be received by the U.S. Department of Homeland Security ("DHS"), Citizenship and Immigration Services ("CIS") on April 1st, 2009. If you do not begin to make preparations as early as possible then you and your prospective H-1B employer will be unable to secure an H-1B (subject to the cap) for the October 1st, 2009 start date.

Unless Congress acts immediately to increase the quota of 65,000 visas (plus and additional 20,000 for those with Masters Degrees from U.S. Academic Institutions), the allotted number of H-1B visas are likely to be taken on the very first day that the petitions may be filed. This is what happened last year and it is presently anticipated that the same thing is going to happen next year.

Last year during the "run on H-1Bs" many people did not receive the visa because the petitions were not filed in a timely manner. Other cases were not "properly filed" (defined in the CIS regulations) and were incomplete or deficient in some way and they were therefore not approved even though they were filed in a timely manner. If petitioners fail to properly meet each one of the regulatory filing requirements, then the petition may not be considered "properly filed" and may be returned.

There are a few things that prospective H-1B employers and H-1B employees can do to improve the likelihood that the H-1B will be accepted by the CIS. First, be sure that all of the appropriate documentation is contained in the H-1B petition. Second, be sure that the H-1B is submitted to the CIS in a timely manner. Third, be sure that the H-1B is sent to the proper CIS Service Center for adjudication.

Most importantly, H-1B petitioners should consider the possibility of utilizing filing multiple H-1B petitions. Be advised that the CIS issued guidance concerning multiple H-1Bs. Filing a master's H-1B and bachelor's H-1B is not considered a multiple H-1B filing. Many organizations have layers and layers of subsidiaries and affiliates (different organizations with different Employer Identification Numbers) and there appears to be nothing yet in the regulations to preclude the use of those organizations as vehicles for additional H-1Bs. With each H-1B submitted, there is a statistically higher chance of one of the H-1Bs being able to "win" the lottery.

What is your H-1B back-up plan? First consider trying to obtain an H-1B with a cap-exempt organization. Academic institutions of higher education can make petitions for the H-1B with no regard to the cap. Also, many may qualify for alternative visas to the H-1B. For example, in 1991, the law carved the O, P Q and R visa categories out of the H-1B nonimmigrant visa classification. You will want to look to all of your H-1B visa alternatives.

What is your H-1B Back-Up Plan? Look North to Canada.

The most common reason for H-1B applications to be returned is that too many are received for the number of available H-1B slots. Most foreign nationals invest all their energies in the H-B process without thinking of what they will do if they don't make the quota. It is recommended that H-1B applicants set up an "immigration back-up plan." Canada offers a viable alternative to those seeking entry in the U.S. and not accepted for an H-1B visa.

What many do not realize is that foreign nationals who are presently in the U.S. can make an application for Canadian permanent residence before, or while, they file for and await an H-1B determination. There is nothing to prevent applying for entry to both countries at the same time. Under the Canadian Immigration Regulations, there is a special provision to allow a foreign national to apply to enter Canada directly from the U.S. - without returning to their home country - as long as that person has been lawfully admitted to the U.S. for one year or more and has the visa(s) to prove it. However, it is preferable to apply to Canada (but not necessarily required) before the current visa in the U.S. expires.

Learn more...

About Nachman & Associates, P.C.

When traditional immigration approaches do not work, our skilled legal team offers many visa options to meet your immigration goals. Please feel free to contact us at any of our seven office locations, and speak to an associate in one of our 12 languages spoken, including: Spanish, French, Japanese, Korean, Slovak, Czech, Polish, Tagalog, Italian, Russian, Chinese, and German.

To meet a growing demand for Canadian immigration from the United States, in 2005 Nachman & Associates formed a Canadian Division, managed by licensed Canadian legal staff. With offices in Montreal, and Toronto, Canada (as well as in New York and New Jersey in the U.S.) our Canadian Division attorneys are in the unique position to assist with cross-border issues. If you, or any member of your staff, are interested in receiving more information about U.S. and/or Canadian Immigration options, please contact our offices at 201-670-0006 (x100) or e-mail to us at info@visaserve.com.

Website: http://www.visaserve.com

Nachman & Associates, P.C.

David H. Nachman

Managing Attorney

email: david_nachman@visaserve.com

phone: 201-670-0006 ext. 100